Is the new San Francisco Caltrain tax resolution less toxic? Is it legal? Viable for voters?

The version of a Caltrain tax resolution that the San Francisco Board of Supervisors passed on Tuesday night might – just might – be less illegal and possibly viable with voters.  Answers to questions need to come rapidly over the next few days for the remaining boards to decide.

When Supervisor Walton presented the Caltrain ballot resolution to the Board of Supervisors on Tuesday, he mentioned some small language cleanups.  But the changes aren’t small – they are big changes in substance. The changes are confusingly written and in some cases legally impossible,  But they are significantly less bad than the previous version.  The questions are:

  1. Would they allow for a legally defensible ballot measure…
  2. That voters would pass…
  3. And that would not fatally hinder the running of Caltrain

Legally defensible.  

The earlier San Francisco version set up conditions where a subset of funding for the tax would go to Caltrain for up to two years, and beyond that the fate of the funds was undefined pending resolution to governance questions.  This seemed clearly to violate the intent of the authorizing law which says that the funds need to go to run and improve Caltrain. Not only would this be vulnerable to lawsuits, those lawsuits might well succeed because the outcome of not funding Caltrain is antithetical to the SB797, the law authorizing the ballot measure.

The new version adds supermajority vote requirements for some of the money in the first two years, and after that for all of the money until governance questions are resolved.

Also, the new language has an element that is legally impossible as far as I can tell. It calls for Caltrain’s Joint Powers Agreement to be amended with a two thirds vote. But the legal agreements establishing the JPA say that all parties need to agree. Your blogger is not a lawyer but doesn’t think a ballot measure can override the Joint Powers Agreement.

Because there are conditions added – SB797 just says the measure should be for funding Caltrain service and improvements – and legal inconsistencies, the question is what legal vulnerability is caused by this language. Could Caltrain be sued? Would the party suing be likely to win? What are the risks legal risks of advancing a ballot measure with these legal problems?

That voters would pass.  

Polling was surprisingly good for a measure described as providing funding to run and improve Caltrain, making it better connected and more affordable.  The polls, taking during weeks 11 and 12 of shelter-in-place, said that 70% of voters would support with positive messaging, but the results go down into the 50s with negative messaging. 

Nobody polled on the earlier San Francisco version, a measure that would raise taxes, where some of the money would go for up to 2 years for Caltrain, and the remaining use was undefined.  That seems much more difficult to campaign for, and vanishingly difficult pass.

The new SF version would enable the funding to go to Caltrain with supermajority board votes, so it doesn’t have the fatal flaw of quite possibly not funding Caltrain.  The requirement for supermajority votes would change after resolution of governance questions.

The ballot language is a key remaining question for viability.  A ballot measure needs to communicate to voters in 75 words. A critical question for the viability of this version is whether it would be possible to use this language to write a ballot question that voters would understand and vote for.  The clean measure made it very easy. This one? Needs legal assessment.

Allow for the running of Caltrain service

For the regular running of an important part of the region’s transit network, this supermajority condition seems annoying but doable. To date, most Caltrain board items pass unanimously. There have been very very few close votes.  The political question is whether, with a two thirds condition to spend most of the money, whether counties would attempt to appoint local control loyalists who would vote to hang up funding for Caltrain serve and improvements in the struggle for intercounty advantage.

The conditions on the funds would go away following agreed governance changes. While having these conditions in a ballot measure is annoying, we think that some governance change change is inevitable because Caltrain’s current structure, while it has served well pre-Covid, creating a high-ridership, popular system, was not going to be sufficient to take Caltrain service into the future, with higher capacity, better coordinated scheduling, integrated fares, and complex megaprojects to deliver.  The question is whether the strongest proponents of the status quo would oppose the ballot measure conditions as too much pressure for change.

Regarding governance change, though, we don’t think that the status quo will remain in any event. The question is how and what governance change happens and not whether it happens. If the measure does not go on the ballot, and Caltrain has far from enough funding to run, there may well be higher level regional and state initiatives toward reorganizing Caltrain, and that could also lead to dramatic change different from that contemplated by any of the current parties.

Legal and policy questions

There are a lot of legal questions to sort through – and policy questions.  The new version is definitely more risky than the original clean version.  The question is whether the risks are bearable.  If the measure was litigated, would the suit likely win or lose? Would the language enable a ballot measure language that voters would vote for? Would the outcome allow Caltrain service to be run in a way that would function for riders?

This will be the subject of assessment and debate over the next week.

New SF Version

https://sfgov.legistar.com/View.ashx?M=F&ID=8694216&GUID=88CC6536-5288-42D2-A96D-83FBCF2B703A

Old SF version

https://sfgov.legistar.com/View.ashx?M=F&ID=8686928&GUID=29047B37-370D-403D-BD22-63F10C3422B3

Original version

As presented to San Mateo County Board of Suervisors